Teresa F. v. Dcs ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
TERESA F., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, T.F., D.F., Appellees.
No. 1 CA-JV 15-0123
FILED 10-8-2015
Appeal from the Superior Court in Maricopa County
No. JD505677
The Honorable Rodrick J. Coffey, Judge Pro Tempore
AFFIRMED
COUNSEL
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda L. Adams
Counsel for Appellee
TERESA F. v. DCS, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Peter B. Swann joined.
J O N E S, Judge:
¶1 Teresa F. (Mother) appeals the juvenile court’s order granting
guardianship of T.F. and D.F. (collectively, the Children) to their maternal
aunt and uncle. On appeal, Mother challenges the juvenile court’s findings
that the Department of Child Safety (DCS) proved adequate grounds for
guardianship by clear and convincing evidence. Mother also argues the
court erred in considering information contained within a psychological
evaluation report but not admitted into evidence. For the following
reasons, we affirm.
FACTS1 AND PROCEDURAL HISTORY
¶2 In 2001, T.F., born in 1999, and D.F., born in 2000, were
removed from Mother’s custody and placed with their biological father
after DCS received reports of abuse against the Children’s older siblings. In
2005, DCS received reports of the father neglecting and physically abusing
the Children, and they returned to live with Mother.
¶3 In 2012, DCS received reports Mother was being evicted from
her home and was unable to support the Children. Following her eviction
Mother placed the Children with her nephew and lived out of her car. Later
that year, she contacted police claiming the nephew had kidnapped the
Children and wanted the children temporarily placed in foster care.
¶4 An investigating case manager for DCS met with Mother and
reported signs of mental instability. DCS took temporary custody of the
Children, and in July 2012, the juvenile court adjudicated the Children
dependent as to Mother and adopted a case plan of family reunification.
1 “‘[W]e view the facts in the light most favorable to upholding the
juvenile court’s order.’” Desiree S. v. Dep’t of Child Safety, 235 Ariz. 532, 533
n.2, ¶ 1 (App. 2014) (quoting Ariz. Dep’t of Econ. Sec. v. Matthew L., 223 Ariz.
547, 549, ¶ 7 (App. 2010)).
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TERESA F. v. DCS, et al.
Decision of the Court
¶5 DCS provided reunification services to Mother including
transportation, parenting skills instruction, and supervised visitation. The
plan required Mother to participate in random urinalysis testing, obtain
mental health treatment, be subject to medical monitoring, develop
parenting skills, and secure stable housing and income.
¶6 While Mother’s urinalysis test results were negative, DCS’s
primary concern remained Mother’s mental health. Mother had been
treated for depression since 1995, and a traumatic head injury and
consequential brain surgery in 2001 gave rise to additional mental health
maladies. Medical records from a July 2012 evaluation indicate Mother
suffers from bipolar disorder, dysthymic disorder, post-traumatic stress
disorder, and a mood disorder. At the time of that evaluation, Mother was
prescribed medication and instructed to return and report her symptoms
and responses to the medication. Mother had not returned to the
prescribing doctor as directed, was not taking her medication, and was not
mentally stable.
¶7 In September 2012, parent aid services were cancelled and no
parental visits were scheduled based upon the Children’s desire to not have
visitation with Mother. However, the Children were given the means and
opportunity to communicate with Mother and request visitation if they
wished. In December, Mother’s mental health was again evaluated and,
based upon the recommendations of the examining doctor, DCS
recommended Mother receive additional treatment to stabilize her mental
health, and her contact with the Children be limited to therapeutic visits.
¶8 Mother elected to receive those mental health services
through the Veterans Administration Medical Center (VAMC), but refused
to provide medical records to DCS verifying her receipt of treatment. As a
result, in July 2013, the juvenile court ordered VAMC to release Mother’s
medical records to DCS. Those records revealed Mother had not been
receiving mental health treatment and was taking “herbal meds” in lieu of
prescribed medication. Mother also moved out of Maricopa County and
did not return to the Phoenix area despite DCS’s recommendation she do
so in order to participate in therapeutic visits.
¶9 In August 2013, the custodial relative with whom the
Children had been placed became unable to care for the Children, and the
juvenile court ordered they be placed in the physical custody of a maternal
aunt and uncle in Seattle, Washington. In the same order, the court found
DCS had made reasonable family reunification efforts up to that point.
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TERESA F. v. DCS, et al.
Decision of the Court
¶10 In February 2014, at DCS’s request, the juvenile court changed
the case plan to guardianship, again finding reasonable efforts had been
made to reunify the Children with Mother. DCS filed a motion to appoint
the Children’s maternal aunt and uncle in Washington as permanent
guardians pursuant to Arizona Revised Statutes (A.R.S.) sections 8-8712 and
-872. At the contested guardianship hearing in April 2015, DCS reported
the Children were thriving in the care of their maternal aunt and uncle and
had expressed a desire to continue living in Washington under their care.
One of the relatives learned sign language in order to communicate with
T.F., who is deaf, and both Children were receiving regular medical and
dental care. Each of the Children was provided means to communicate
with Mother via email and telephone, but as of the guardianship hearing,
neither had expressed any desire to do so.
¶11 The court granted DCS’s motion, and Mother timely
appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A), 12-
120.21(A)(1), and -2101(A)(1), and Arizona Rule of Procedure for the
Juvenile Court 103.
DISCUSSION
¶12 Mother argues DCS did not prove any grounds for the
guardianship under A.R.S. § 8-871(A). On review, we will affirm an order
establishing a guardianship based upon findings of clear and convincing
evidence “unless no reasonable evidence supports those findings.” See
Jennifer B. v. Ariz. Dep’t of Econ. Sec., 189 Ariz. 553, 555 (App. 1997) (citing
Pima Cnty. Juv. Sev. Action No. S-113432, 178 Ariz. 288, 292 (App. 1993));
A.R.S. § 8-872(F) (stating party filing a motion to appoint a guardian “has
the burden of proof by clear and convincing evidence”).
¶13 The court may establish a guardianship if it is in the child’s
best interests and all of the following apply:
1. The child has been adjudicated a dependent child.
2. The child has been in the custody of the prospective
permanent guardian for at least nine months as a
dependent child. The court may waive this requirement
for good cause.
2 Absent material revisions from the relevant date, we cite a statute’s
current version.
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TERESA F. v. DCS, et al.
Decision of the Court
3. If the child is in the custody of the division or agency, the
division or agency has made reasonable efforts to reunite
the parent and child and further efforts would be
unproductive. The court may waive this requirement if it
finds that reunification efforts are not required by law or
if reunification of the parent and child is not in the child’s
best interests because the parent is unwilling or unable to
properly care for the child.
4. The likelihood that the child would be adopted is remote
or termination of parental rights would not be in the
child’s best interests.
A.R.S. § 8-871(A). Of these elements, the first, second, and fourth are
uncontested. Thus, we need only consider whether DCS proved, by clear
and convincing evidence, that (1) guardianship is in the best interests of the
Children, and (2) DCS made reasonable efforts to reunify Mother with the
Children and further efforts would be unproductive, reunification efforts
were not required by law, or reunification was not in the Children’s best
interests. See A.R.S. § 8-871(A). Reasonable evidence supports the juvenile
court’s findings that these remaining requirements were met.
A. The Trial Court’s Guardianship Order is in the Children’s
Best Interests.
¶14 Best interests of a child are established by either an
affirmative benefit to the child arising by appointing a guardian, or a
detriment to the child arising by denying the guardianship motion. See
Jennifer B., 189 Ariz. at 557 (citing Maricopa Cnty. Juv. Action No. JS 500274,
167 Ariz. 1, 6-7 (1990)). Here, the juvenile court found the Children’s best
interests served by appointing the maternal aunt and uncle as the
Children’s guardians. Specifically, the court found the Children “wish to
remain” with their relatives, the relatives “are meeting all of the
[C]hildren’s special needs, including [T.F.’s] special sign language needs,”
and are “solidif[ying] [the Children’s] newfound stability, which they had
not experienced in their mother’s care.”
¶15 Additionally, the DCS caseworker’s testimony and Mother’s
medical records demonstrate the severity of the ongoing mental health
problems she failed to adequately remedy. She did not submit to
recommended mental health treatment and failed to take her prescribed
medication. Therefore, the record supports the juvenile court’s finding that
guardianship provides an “affirmative benefit” to the Children. Moreover,
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TERESA F. v. DCS, et al.
Decision of the Court
denying the motion would be a detriment to the Children who are receiving
the special care and stability they need from relatives with whom they wish
to remain.
B. DCS Made Reasonable Efforts to Reunify Mother with the
Children.
¶16 Mother argues DCS failed to provide reasonable efforts to
reunify her with the Children as required by A.R.S. § 8-871(A)(3). This
Court has held that DCS is not required to undertake “futile efforts” in
attempting to reunify parents with children, but is required by the U.S.
Constitution to “undertake measures with a reasonable prospect of
success.” Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 193 Ariz. 185, 192, ¶ 34
(App. 1999) (citing Maricopa Cnty. Juv. Action No. JS-5209 and No. JS-4963,
143 Ariz. 178, 189 (App. 1984)). Although Mary Ellen C. is a severance
action, the same “‘fundamental liberty interest of natural parents in the
care, custody and management of their child’” is at stake in guardianship
actions brought under A.R.S. § 8-871. See id. (quoting Santosky v. Kramer,
455 U.S. 745, 753 (1982)). Therefore, the same family reunification efforts
required of DCS in severance actions are also required in this case.
¶17 Mother argues DCS’s cancellation of parent aid services after
the Children refused to participate in visitation demonstrates DCS did not
make reasonable efforts at reunification and sets a “dangerous precedent.”
The record reflects, however, DCS made reasonable reunification efforts by
providing random urinalysis testing and mental health services. That
visitation was cancelled due to Children’s refusal to participate does not
negate those efforts, and Mother has not justified her failure to participate
in necessary mental health services.
¶18 Mother also argues DCS’s failure to provide therapeutic
visitation as recommended in a case manager’s report proves DCS failed to
make reasonable reunification efforts. We disagree. That case manager’s
report actually recommends Mother “relocate to the children’s area so that
she can maintain contact with the children and attempt to rebuild her
relationship with them. That would need to be done, primarily, in the
context of therapeutic visits over a long period of time.” The report also
states: “No contact outside of a therapeutic environment is recommended
for [Mother] and her children. Any involved counselor should be involved
to obtain an opinion as to whether or not the children would be harmed by
having therapeutic contacts with their mother.” As such, the report does
not contain a recommendation for contact, but that contact be limited to
therapeutic visitation, and even then only if it would not be harmful to the
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TERESA F. v. DCS, et al.
Decision of the Court
Children. Mother, however, remained outside of Maricopa County, did not
obtain the recommended mental health treatment, and was not taking her
medication.
¶19 The record supports the juvenile court’s finding that further
reunification efforts, including visitation and parent aid services, were
futile. See Mary Ellen C., 193 Ariz. at 192, ¶ 34. Not only did the Children
decline any contact with Mother, Mother also stopped receiving the mental
health treatment DCS recommended, stopped taking her medication, and
moved away, thereby frustrating any reasonable possibility of successful
reunification through visitation, parent aid, or other services. Therefore, it
cannot be said DCS failed to make reasonable efforts to reunify Mother with
the Children.3
¶20 Mother’s failure to follow the case plan supports the juvenile
court’s additional finding that, even if reunification efforts were not
sufficient, Mother was “unwilling or unable to properly care for the
child[ren].” A.R.S. § 8-871(A)(3). Reasonable evidence therefore supports
the court’s determination that the statutory requirements for guardianship
were met.
C. The Juvenile Court Did Not Err in Admitting or
Considering the Evidence Presented.
¶21 Finally, Mother asserts the juvenile court erred in admitting
testimony and reports containing “snippets and potentially inaccurate
summaries” of psychological evaluation results not admitted into evidence.
We review evidentiary rulings for an abuse of discretion. Kimu P. v. Ariz.
Dep’t of Econ. Sec., 218 Ariz. 39, 42, ¶ 11 (App. 2008) (citing Lashonda M. v.
Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, 82-83, ¶ 19 (App. 2005)).
3 Mother also argues the evidence presented by DCS falls short of clear
and convincing evidence because the evidence was at least a year and a half
old at the time of the February 2015 guardianship hearing. However,
Mother fails to account for her failure to obtain mental health treatment —
DCS’s primary concern — which left DCS without any other measures that
would have a reasonable prospect of successfully reunifying Mother with
the children. See Mary Ellen C., 193 Ariz. at 192, ¶ 34 (holding the State is
required to undertake reunification measures having “a reasonable
prospect of success” but not measures that are futile) (citing JS-5209, 143
Ariz. at 189).
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TERESA F. v. DCS, et al.
Decision of the Court
¶22 In juvenile court, exhibits are disclosed to all parties prior to
a hearing, and objections to the exhibits must be raised before the hearing
occurs:
If a party objects to the admission of an exhibit, the party shall
file a notice of objection and the specific grounds for each
objection . . . within ten (10) days of receipt of the list of
exhibits. Specific objections or grounds not identified in the
notice of objection shall be deemed waived, unless otherwise
ordered by the court.
Ariz. R.P. Juv. Ct. 44(B)(2)(e). Although the results of the psychological
evaluation conducted in December 2012 were not directly admitted into
evidence, Mother stipulated to the admission of DCS progress reports that,
in part, summarized the evaluation results. A party “failing to file a timely
pretrial notice of objection as required by [Rule 44(B)(2)(e)] . . . waive[s] her
objections to the admission of the exhibits.” Alice M. v. Dep’t of Child Safety,
237 Ariz. 70, 73, ¶ 11 (App. 2015). Because Mother did not object to the DCS
reports, she waived any objection to their admission.
¶23 During the guardianship hearing, DCS also elicited testimony
from the case manager about psychological evaluation results not
contained in the report she prepared. Mother argues this testimony was
inadmissible hearsay. See Ariz. R. Evid. 801, 802. Although Mother’s
counsel objected to testimony from the case manager concerning evidence
not admitted at the hearing, the question was then rephrased and no
hearsay objection was raised. We will not consider objections regarding the
admissibility of evidence not raised in the juvenile court. See Christy C. v.
Ariz. Dep’t of Econ. Sec., 214 Ariz. 445, 452, ¶¶ 20-21 (App. 2007) (holding
objections raised for the first time on appeal are waived) (citing Jost v. Ross,
82 Ariz. 245, 247 (1957), and Leigh v. Swartz, 74 Ariz. 108, 114 (1952)).
CONCLUSION
¶24 Based upon the foregoing, we affirm the juvenile court’s order
granting DCS’s motion to appoint the Children’s maternal aunt and uncle
as guardians.
:ama
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